Reasonable Adjustments

Click on the case name below to be taken to a summary. 


O'Hanlon v Commission for HM Customs [2006] IRLR 840 
Reasonable adjustments - sick pay - substantial disadvantage - comment on Nottingham County Council v Meikle - whether reasonable adjustment to continue to pay absent disabled person at full rate
The Claimant had been absent from work for long periods of time.  Most but not all of her absences were related to her disability.  The Claimant applied for payment for the time that she was absent.  Her request was refused.   She also requested that absences on account of her disability should not be included for the purposes of calculating sick pay.  The Claimant made a claim that she should have been paid full pay for all disability related sickness absences.  She claimed that she was substantially disadvantaged by the sick pay rules, that the Respondent failed to make a reasonable adjustment and that she was subject to less favourable treatment for a reason related to her disability.

The Respondent argued that the Claimant was not substantially disadvantaged because the sickpay rules applied equally to everyone.  This argument was given short shrift: "The whole premise of this provision [the reasonable adjustments provision] is that the disabled employee may be disadvantaged by the application of common rules."
"The question of whether any reasonable adjustments were required ... depends on an objective assessment of what could be done to ameliorate the disadvantage in fact created." Per Elias J (President)
The EAT found that it was permissible for an employer to have regard to the wide costs implications of a decision to extend sick pay.   Significantly Elias J stated at paragraph 67:
"In our view it will be a very rare case indeed where the adjustment said to be applicable here, that is merely giving higher sick pay than would be payable to a non-disabled person who in general does not suffer the same disability related absences, would be considered necessary as a reasonable adjustment.... although we do not rule out the possibility that it could be in exceptional circumstances."
Nottinghamshire County Council v Meikle was distinguished at paras 70 to 74:
"The employers conceded that the reduction to half pay constituted less favourable treatment by reason of her disability.  The question was whether it was justified.  Because of what is now section 3A(6), that had to be considered on the assumption that any relevant reasonable adjustments had been made  Had they been made in this case, Mrs Meikle would not have been absent for anything like as long as she was and the reduction in pay would not have occurred.  Accordingly, the EAT held that the employers were not justified in reducing the pay to half pay.  The Court of Appeal agreed with this analysis." per Elias J at para 73
[NB This case was appealed (unsuccessfully) to the Court of Appeal.
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Tarbuck v Sainsbury Supermarkets Ltd [2006] IRLR 664
Reasonable adjustments - whether a failure to consult can be a failure to make a reasonable adjustment - overrules Mid-Staffordshire General Hospital NHS Trust v Cambridge [2003] IRLR 566 EAT - burden of proof
The Claimant was the Respondent's business analyst and IT Project Manager.  She suffered from ulcerative colitis and depression.  After a period of time off sick she returned to a new role.  In June 2003 her employer informed her that she was "at risk" of redundancy.  Those "at risk" of redundancy were entitled to apply for vacant posts in their own divisions and were given priority status over others not "at risk".
The Claimant successfully challenged her "at risk" status and the subsequent decision to change that status was made in good faith.  However, the Claimant was finding her own job increasingly difficult and on 31 July 2003 she applied for a new job with the Respondent as a project manager in finance systems.  The Claimant was interviewed but was unsuccessful.  The Tribunal found that she would have been appointed had she had the priority status but did not make a finding as to when it would have been reasonable to have given her priority status.
By 10 September 2003 the Claimant's work finished and she had nowhere to go.  She was off sick at the time her duties came to an end.  The Claimant felt disadvantaged by not having priority status and so requested to be placed at risk once again.  The Claimant had not found an alternative position when, some time later in November, the Respondent made her redundant.
Because the Tribunal had found that it would have been reasonable to have restored the Claimant's priority status but did not specify a date when that status should have been restored (other than saying that it would not have been reasonable to have restored it straight away) Elias J remitted the matter back to the Tribunal. 
With regard to the obligation to consult Elias J stated at paragraph 71:
"The only question is, objectively, whether the employer has complied with his obligations [to make a reasonable adjustment] or not.  That seems to us to be entirely in accordance with the decision of the House of Lords in Archibald v Fife ..If he does what is required of him, then the fact that he failed to consult about it or did not know that the obligation existed is irrelevant...  Conversely, if he fails to do what is reasonably required, it avails him nothing that he has consulted the employee."
Elias J also deals with the burden of proof in relation to reasonable adjustments at paragraph 42.  Although he does not address the issue in terms he suggest that the shifting burden of proof described in Igen v Wong requires Claimants in reasonable adjustment cases to establish a prima facie case that their treatment was unlawful.
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Rothwell v Pelikan Hardcopy Scotland Ltd (ETAS/0008/05) September 2005

Reasonable adjustments - lack of consultation before dismissal on ill-health grounds - Conflicting Medical advice - Discussion of medical advice with the Respondent
The Claimant had Parkinson's disease since 1989.  The Respondent had at all previous times been a model employer and were commended for the care that they had previously taken in dealing with the Claimant.   Eventually the Claimant's condition worsened.  The Respondent's Occupational Health Adviser indicated that he would not be able to return to work but procured a neurologists' report.  The neurologist indicated that the Claimant had a chance of being able to return to work if he underwent a new treatment.  The OHA ignored the report and told the Respondent that the Claimant was not fit for work.  A meeting was called in order to present the Claimant with the Respondent's decision on his future employment.  The Claimant was told that he was to be dismissed.  The Claimant indicated that he was not happy that he had not been consulted, that he had not been able to see the medical reports and that his own doctor felt that he was fit for work.
A Respondent should consult with a disabled person at appropriate stages including those stages that involve considering the effect that the disabled person's disability might have on his future employment.  Since the Respondent had not discussed the terms of the OHA's report with the Claimant prior to the decision to dismiss him it could not be said that he had been consulted.  Consultation with the Claimant would have been a reasonable adjustment.  The case was remitted to the Tribunal for a hearing on remedy.
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British Gas Services v Park (EATS/0088/04) 30 June 2005

Reasonable adjustments - whether refraining from dismissal of an employee can be a reasonable adjustment
The Claimant was employed by the Respondent as a service engineer from 1967 until 2002.  Prior to July 2001 he was absent from work on account of ill-health (anxiety and depression) and he applied for ill-health retirement.  Due to activities that the Respondent alleged the Claimant undertook while he was sick he was dismissed for misconduct.  The Claimant's Occupational Health Physician advised that attending the disciplinary interview was inadvisable and that the Claimant could be forgetful and have problems concentrating.  The Claimant appealed unsuccessfully to the Respondent's appeal panel.  The Claimant claimed that, by dismissing him, the Respondent was failing to make a reasonable adjustment.
"...we are satisfied that the legislation cannot be read so as to require an employer to make a reasonable adjustment which consists of refraining from dismissing an employee.  If an employer does dismiss a disabled employee and he does so for a reason relating to his disability, then the employee may well have a claim under s.5(1) but.... that would be a separate and distinct claim"  per the Honourable Lady Smith at para 33.
[NB note the more recent cases of Fareham College v Walters which states that the duty does apply to dismissals and Stockton Borough Council v Aylott which states that it does not]
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Lanarkshire Primary Care NHS Trust v Naicker (EATS/0003/05)

Reasonable adjustments - date of knowledge of disability – relevance of the Respondent’s status as a health care provider to date of knowledge – date of knowledge must be determined
The Claimant worked for a health care trust. She developed problems with her back in 1997 and in July 1999 signed off sick. She did not return to work but retired due to ill health in September 2000. At the time she thought that retirement was the only option available to her. The Claimant later claimed that the trust failed to make a reasonable adjustment and offer her alternative work. The Tribunal at first instance found that the Respondent should have know that she was disabled from December 1999.  
It was not appropriate to attribute a “higher degree of knowledge” to the Respondent because it was a health care provider. It was insufficient to find that the Respondent should have know about the disability “at the latest” by December 1999. The earliest date from which the Respondent had actual or deemed knowledge was a finding of fact that had to be determined.
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Baynton v South West Trains (UKEAT/0848/04/TM)

Reasonable adjustments post-employment - Relaxion v Rhys-Harper [2003] IRLR 484 considered - whether a failure to reconsider a dismissal after the appeal stage of a disciplinary procedure can constitute discrimination
The Claimant started as a train driver with South-West trains from February 1995.  He took a great deal of time off for ill-health.  After a number of disciplinary meetings the Claimant was dismissed.  He appealed this decision but was not successful.  He was dismissed on 11 December 2003.  On 12 January 2004 the Claimant's union wrote to South-West Trains and requested that they reconsider the appeal decision.  They enclosed a further letter indicating that there had been a misdiagnosis.  The Claimant asserted that by failing to revoke their previous decision the Respondent had failed to make a reasonable adjustment.
The EAT conducted a helpful review of the authorities on post-employment disability discrimination.  They stopped short of saying that there was a post-employment duty to consider reasonable adjustments and found that:
" in our judgement a request by an ex-employee to his ex-employer to reconsider a dismissal after appeal procedures have been exhausted and the employment has finally been brought to an end must be regarded as falling outside the boundaries set in Rhy-Harper as explained in Shoebridge." [per His Honour Judge Burke QC at para 30].
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Royal Mail Group Plc v Mr A Sharma (UKEAT/0839/04/ILB)

Reasonable adjustments - damages in the absence of a relevant dismissal – loss of future earnings and the duty to make reasonable adjustments
The Claimant was a postman who during the course of his employment became disabled as a result of a whiplash injury in a road traffic accident. The first instance Tribunal found that the dismissal of the Applicant was discriminatory and procedurally unfair.  However it found that had the proper procedures been followed he would have been dismissed in six weeks in any event.
Although the appeal did not concern this point directly it stands as a useful reminder not to forget that future loss of earnings do not follow automatically from a discriminatory dismissal. The failure to make a reasonable adjustment must still cause the losses
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Archibald v Fife Council [2004] UKHL 32, [2004] IRLR 651

Reasonable adjustments - guidance on approach to be taken - meaning of arrangment - dismissals and reasonable adjustments - whether duty to consider transferring person to another job when he becomes incapable of performing his own
Ms Archibald was a road sweeper.  After undergoing minor surgery she became unable to do her work.  The council were unable to alter the job so that she would be able to perform it.  However there were other jobs within the Respondent's organisation that were within her capabilities.  She was automatically shortlisted for the posts that the Respondent had available and applied for 100 of them.  She was unsuccessful.  She complained that the Council should have adjusted the requirement for her to undertake a competitive interview. 
Their Lordships identified slightly different relevant arrangements.  Lord Hope found that it was an implied condition or "arrangement" of her employment that she should at all times be physically fit to do her job as a road sweeper.  [NB the reference to "arrangement[s]"  in the DDA was changed in October 2004 to "provision, criterion or practice"].  Baroness Hale stated at paragraph 62:
"An employer's arrangements for dividing up the work he needs to have done into different jobs are just as capable of being 'arrangements' as are an employer's arrangements for deciding who gets what job or how much each is paid.  Some employers might combine cooking and bottle-washing in one job while others might treat them quite differently.  The job descriptions for all their posts are 'arrangements' which they make in relation to the terms, conditions and arrangements on which they offer employment.  Also included in those arrangements is the liability of anyone who becomes incapable of fulfilling the job description to be dismissed."
(This interpretation is a broader interpretation of to the former section 6 than was given in Clark v Novacold)
The case was remitted to the Tribunal to consider whether or not the Council had complied with its duty.  Baroness Hale commented that, in the circumstances of this particular case, it might have been reasonable to simply transfer the Claimant to an existing vacancy without requiring her to go through an interview process even if the vacancy was for a post more senior than the one she occupied. 
Baroness Hale's judgment provides a very useful illustration of how important it is to correctly identify the 'arrangement' that is alleged to be causing the disadvantage.  If the wrong 'arrangement' is chosen a disability discrimination claim may fail completely.
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Nottingham County Council v Meikle [2004] EWCA Civ 859, [2004] IRLR 703

Reasonable adjustments - payment of additional sick pay - constructive dismissal is a dismissal for the purposes of section 4(2)(d) of the DDA
Mrs Meikle was employed as a teacher.  In 1993 she began to experience problems with her deteriorating vision and eventually lost her sight in one eye and suffered from reduced vision in the other.  She coped with her problems for a number of years.  She had a number of absences from work and in particular started a period of absence in August 1999.  On 10 September she was suspended from work because of her absences and put onto half pay from 17 December 1999.  She began a disability discrimination claim in July 1999.  Her solicitors requested eight reasonable adjustments that included the enlargement of all written materials and a reduction in her contact time.  The Respondent replied that it would be difficult to reduce the Claimant's contact time but that it would try to enlarge the materials.   The Claimant resigned in May 2000 because she continued to receive documents that were not enlarged and because she was not assigned any more non-contact time.  She claimed that she had been constructively dismissed.

Keene LJ examined the meaning of "dismissal" in section 4(2)(d) of the DDA.  He concluded that dismissal for the purposes of this section included a constructive dismissal and that time began to run from the date of the act complained of.  The act complained of was the unlawful dismissal which in a constructive dismissal case was the termination of the contract by the employee (para 52). 

On the sickpay issue Keene LJ found that section 6(11) of the DDA did not exclude the application of section 6 to contractual sick pay.  His Lordship found that section 6(11) was directed at occupational pension schemes and third party insurance services and not contractual sick pay.

Since the Respondent conceded that the reduction in Mrs Meikle's sickpay amounted to less favourable treatment the crucial question was whether the treatment was justified.  The Respondent argued that the fact that the sick pay applied to all person who had been sick for longer than 100 days was sufficent justifcation.

Section 3A(6) DDA (then section 5(5)) provides that, where a person has committed disability related discrimination but has failed to make a reasonable adjustment, a justification for that disability related discrimination may be accepted in only limited circumstances.  Those circumstances are where the justification would be valid even had the reasonable adjustments been made. 
Keene LJ's judgment effectively follows the following steps in deciding that the justification was not acceptable:
(1) The treatment complained of was that Mrs Meikle had her pay reduced to half;
(2)  The justification for that treatment was that any employee who had been absent for more than 100 days would have had their sick pay reduced;
(3) Had the Respondent made the non-sick pay adjustments that Mrs Meikle required she would not have been off work for more than 100 days;
(4) Had Mrs Meikle not been off work for more than 100 days she would not have been subjected to the treatment;
(5) the withdrawal of her sick pay was therefore unjustified since her sick pay would not have have been withdrawn had the Respondent made the reasonable adjustments.
It is important to remember when considering section 5(5) of the DDA that the "it" in the phrase "it would have been justified" refers to the treatment of the Claimant rather than a hypothetical scenario in which the adjustments have been made.
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Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566
Reasonable Adjustments - when duty applies

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Beart v. H M Prison Service [2003] IRLR 238
Reasonable adjustments; justification.
The applicant was a prison officer.  She had a disagreement with her line manager and went off work with depression. The employer’s occupational health consultant expressed the view that the applicant would not recover until the difficulties with her present job were addressed and said that suitable redeployment at another prison might be the only answer to the situation. That recommendation was never acted upon. The applicant was eventually dismissed for doing part time work in another job.
The EAT upheld the tribunal’s decision that the employer had failed to make a reasonable adjustment by way of relocation or redeployment, as recommended in the medical report, and CA dismissed an appeal against that decision.
It is not an error of law for a tribunal to have failed to follow sequentially the series of steps indicated in Morse, provided that it is apparent from the tribunal’s decision that they properly applied themselves to considering whether the requirements of the statute were satisfied.
In the present case, the tribunal did consider reasonableness and found the step of relocation to be a reasonable one. The test of reasonableness under s.6 is directed to the steps to be taken to prevent the employment from having a detrimental effect on the disabled employee.
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London Clubs Management v Hood [2001] IRLR 719
Meaning of 'treatment' in reason related to discrimination - reasonable adjustments - meaning of 'arrangements' - when duty to make adjustment applies - meaning of substantial disadvantage - section 6(11)
The Claimant worked in a casino as an inspector of the gaming floor.  His contract of employment provided that "payment for absence through illness will only be made at the discretion of the club director".  He was paid 39 1/2 days sick pay in 1998 but in 1999 the sick pay policy was changed and no sick pay was paid generally.
The Claimant complained that he had been discriminated against on the grounds of his disability.  The parties were in agreement in this case that the relevant 'arrangement' was the non-payment of sick pay.  The Tribunal at first instance found that the Claimant had been less favourably treated for a reason related to his disability and because the Respondent failed to make a reasonable adjustment.  The EAT disagreed.
The Respondent submitted that the reason for the treatment was the sick pay policy.  The Claimant submitted that the reason for the treatment was the absence from work and that his absence related to his disability.  The EAT found that the Tribunal had erred because it considered why the Respondent did not pay the Claimant his wages rather than why it did not pay him sick pay.  The Claimant did not receive his sick pay because of the decision not to pay sick pay generally.
Recorder Slade QC also found that the Tribunal had failed to give adequate reasons for why they found that the Claimant had been placed at a substantial disadvantage in comparison with others who were not disabled.  This was particularly pertinent because the Claimant claimed that his sickness absence was not substantially higher than that of non-impaired colleagues.
In relation to s 6(11) Her Honour stated at para (28):
"In our judgment the natural meaning of 'scheme or arrangement for the benefit of employees' does not include payment of sick pay by an employer to an employee under a contract of employment.  Such payments are made by the employer to rather than 'for the benefit of' the employee.  Further they are made pursuant to the contract of employment... rather than 'under an arrangement'.
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British Gas Services Ltd v. McCaull [2001] IRLR 60
Reasonable adjustments – knowledge - whether breach automatic if employer is unaware of the duty
The applicant was a service engineer who blacked out as a result of an epileptic fit whilst driving his van and had an accident. The employer’s occupational health department advised that he could not return to driving. He was offered an alternative job at a lower salary. He rejected it and was dismissed. The tribunal held that he had been less favourably treated and that the treatment had not been justified [NB a failure to make an adjustment can no longer be justified]. It also found that the employer was in breach of its duty to make reasonable adjustments and that this had not been justified. It found as a fact that the employer had never even considered whether it was under a duty to make reasonable adjustments and concluded that “it cannot be right for an employer wholly to disregard its duty under s.6 DDA and then to seek to justify their disregard by way of submissions made ex post facto at the hearing.
EAT held that, in so far as the tribunal was saying that an employer must consciously consider what steps it should take in the context of its s.6 duty, it was wrong in law.
There is no automatic breach of the s.6 duty because an employer is unaware of that duty. The question is what steps the employer took and did not take. An employer might take all reasonable steps as contemplated by s.6 while remaining ignorant of the statutory provision itself.
There is nothing in the Act to prevent an employer arguing that a s.6(3) step was not a reasonable one which he should have taken, if he did not consider taking it at the time. The test of reasonableness as set out in s.6(4) does not relate to what the employer considered but to what he did and did not do.
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Cosgrove v. Caesar & Howie [2001] IRLR 653
The comparative test in disability related discrimination. Reasonable adjustments
The applicant had been absent from her job as a secretary with the respondent law firm for over a year when, in the absence of a prognosis as to when she might return to work, she was dismissed. The tribunal dismissed her disability discrimination claim on the basis that the employer would have treated anyone else who had been absent for so long in exactly the same way. Moreover, the applicant had not been able to suggest any reasonable adjustments which might be made to allow her to return to work. The EAT overruled this decision.
The tribunal had applied the wrong test. Following Clark v. Novacold, the correct approach is first to determine the material reason for the applicant’s dismissal. The next question is whether the material reason related to her disability. Thirdly, would the employer have dismissed some other to whom that material reason would not apply?
In the present case, the material reason for the dismissal was the applicant’s absence on medical grounds, which amounted to a disability, and there would have been no reason to dismiss someone else to whom that reason would not apply.
The tribunal had also erred in finding that the employer was not in breach of a duty to make reasonable adjustments on the basis that neither the applicant nor her GP could think of anything that would have represented a satisfactory adjustment, in circumstances in which the employer itself had given no thought to the matter. The duty to make adjustments is on the employer. 
NB – see commentary on Tarbuck v Sainsburys Supermarkets above.
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